Virginity Testing and the Children’s Bill
Discussion Paper
11 October 2005
Children’s Institute, University of Cape Town[1]
- Introduction
Children are one of the most vulnerable groups in society and it is the duty of parents, the family and the state to care of them and ensure a better life and future for them. The Constitution recognises the vulnerability of children and seeks to protect them by inserting children’s rights in the form of section 28 in the Bill of Rights.
The entrenchment of children’s rights means that cultural, social and religious practices which harm children must be abandoned. But how do we determine whether a practice is harmful to a child?
Children have the right to dignity, freedom of the person (bodily integrity), equality, and protection from abuse. But they also have the right to practice their culture and religion.
The Constitution specifically recognises in the preamble that “South Africa belongs to all who live in it, united in our diversity” and protects the rights of individuals and groups to practice their culture or religion in section 31 of the Bill of Rights. However, section 31 contains a proviso that cultural and religious rights may not be exercised in a manner inconsistent with any right in the Bill of Rights. We therefore need to look at each particular cultural, religious or social practice and do a balancing exercise to determine whether the practice infringes children’s rights.
Some practices are not necessarily harmful, but they invade the child’s physical space and therefore it is important that when the child is old enough, the child is given a choice as to whether or not he/she wants to participate in the practice. For instance, at the age of 14 a child can choose whether or not to be provided with medical treatment.[2]
Children’s parents are responsible for determining what is best for their young children and for assisting their older children to make the right choices. Even if the child is very young, the child has a right to express their opinion to their parents and their parents should give due consideration to the child’s opinion before making the decision for the child. When making the decision, the paramount consideration that the parent must take into account is the child’s best interests[3].
How do we determine:
a)whether a practice is harmful to a child, and
b)if the practice is not harmful, -
- when does the child have the right to make the decision for him or herself,
- when should the parent make the decision on behalf of the child, and
- when should the parent assist the child to make the decision?
2. Cultural, religious and social practices dealt with in the Children’s Bill
The Children’s Bill[4] deals with six cultural, religious and social practices that are practiced to varying degrees in South Africa:
1)Male circumscion[5]
2)Female genital mutilation[6]
3)Virginity testing
4)Corporal punishment[7]
5)Marriage below the minimum age[8]
6)Forced marriage of children between the minimum age and the age of majority (18)[9]
It prohibits three of them:
1)Female genital mutilation
2)Virginity testing
3)Marriages below the minimum age for marriage (12 for girls and 14 for boys)
The Bill provides that anyone who practices female genital mutilation or virginity testing is guilty of an offence and liable for a penalty of a fine or imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment. Where a person is convicted more than once then the penalty is a fine or imprisonment for 20 years or both a fine and imprisonment.[10]
The Bill regulates the other three practices in two ways: Firstly by making it clear that the child has a choice whether or not to participate in the practice or secondly by proposing an educative approach to encourage parents to use alternative methods of achieving the same end.
1) Male circumcision
The Bill gives the boy child the right to decide whether or not to be circumcised, depending on the following; the age of the boy, his level of maturity and his stage of development. A person who forces a child to be circumcised is guilty of an offence and liable to a fine or imprisonment.
2)Marriage between the minimum age and the age of majority (18)
The Bill provides that every child above the minimum age for marriage has the right to consent to be given out in marriage. This effectively prohibits forced or arranged marriages against the child’s will. However, the Bill does not clarify that forced marriages are an offence and does not specify a penalty.
3)Corporal punishment
The Bill provides that parents, guardians or other people in control of children have to respect their right to physical integrity as demanded by the Constitution. It goes on to repeal the common law, customary law and all other national legislation which authorizes corporal punishment by the state. Corporal punishment cannot therefore be administered on children in child and youth care centres, partial care facilities or shelters or drop-in centres. However, the section does not ban the practice in the home and does not remove the common law defense of reasonable chastisement that a parent can raise in defense of a charge for assault.
3. Focus on Virginity testing
The banning of virginity testing has caused a controversy and traditional leaders in Kwa-Zulu Natal and the Eastern Cape have protested against the ban as an invasion of cultural rights.
This document looks at the practice of virginity testing and discusses whether it should be banned or regulated or left alone.
3.1 The origin, purpose and extent of the practice of virginity testing in South Africa.
Virginity testing is a tradition followed by some African Black communities such as the Zulu community in Kwa-Zulu Natal as well as the Xhosa population in the Eastern Cape. In the Zulu nation, the practice ‘was originally intended to assure the purity of brides, it fell into disuse in many parts of the kingdom when migrant labour, forced removal and what passed for white civilization, eroded family structures’ [11]
As part of their culture the Zulu and Swazi nations also have annually what is called Umkhosi woMhlanga –the Royal Reed Dance where girls celebrate their virginity and declare their status and the King may also choose a bride from among those maidens. Young women who wish to take part in the Reed Dance are tested for their virginity status. Only those who are virgins can participate in the ceremony, this apparently ensures that the ritual remains pure.[12] Most African leaders encouraging this tradition claim that ‘it [is] an African custom for a woman to value her virginity’[13]
It is alleged that the revival of the practice of virginity testing is due to the increase in the spread of HIV/Aids.[14] Virginity testing is also considered a measure to deter girls from engaging in sexual activity before marriage and to prevent teenage pregnancy.[15] The rationale is that girls will be scared to engage in sex if they know they will be tested.
Testing takes the format of girls lying on their backs on a mat and an adult women then checks to see if the girls’ hymens are still intact.[16] The inspection is quick and often done with the bare hands of the testers though other testers do not make use of their hands.[17] Those being examined are often between the ages of seven and twenty six.[18] The test is supposedly voluntary but this is doubtful because of the ages of some of the girls who are subjected to this test and even more so the parental and societal pressure to undergo the test reduces the possibility of actual consent.
If the girl or woman passes the test then she is marked with a white clay spot on her forehead. If she is a non-virgin then a red clay spot decorates her forehead.[19] The successful candidates also receive certificates and the unsuccessful candidates get counseling where necessary.[20] The examination can be done in the privacy of the home of the female participant by a relative or it can be celebrated as part of the custom of the participant which would then involve the slaughter of cows and homage to the monarchy.[21]
According to those involved in the practice, it is aimed primarily at celebrating culture, reducing the spread of Aids, preventing teenage pregnancy and also teaching young girls to wait until marriage before making their sexual debut.
However, those opposed to the practice, such as the Human Rights Commission, the Commission on Gender Equality and various NGOs and CBOs working with children, are of the opinion that the practice is unconstitutional and violates the human rights of the young girls and should therefore be banned.
3.2 A human rights analysis of the practice
The Constitution[22] is the supreme law[23] of our country and it is built on basic principles such as the promotion of equality and the protection of human dignity and freedom. The Bill of Rights outlines the rights of people which the Constitution seeks to promote and protect. The practice of virginity testing affects various rights of young girls and woman. It can be viewed as being a practice which has been given authority by the right to culture in section 31 of the Bill of Rights, and this would enhance its importance as a practice. On the other hand it can also be viewed as infringing fundamental rights such as the right to equality and dignity and this could negate claims regarding the practice as essential to the needs of those involved in it. So what is necessary is to balance out these rights. The best way to do this is to apply section 36 of the Constitution to the rights affected by the practice so as to uncover the possible conclusions to be reached at the end of such an exercise.
3.2.1 Arguments against the practice
Most of the rights contained in the Bill of Rights are not absolute and the Constitution does make allowance for the limitation of rights if it is done in accordance with the limitations clause (section 36 of the Constitution). Section 36 provides the criteria to examine the justification for limiting certain rights and gives factors to consider when balancing rights against each other.
The following rights are limited by the practice of virginity testing:
- the right to equality,[24]
- the right to have ones dignity respected,[25]
- the right to freedom and security of the person[26],
- the right to privacy,[27] and
- the children’s rights to be protected from abuse, neglect and degradation[28]
The right to equality:
It has been argued that since virginity testing predominantly applies to women only it violates the right to equality.[29] This unfairly places the duty of being sexually responsible solely on woman. Furthermore, being a virgin also has implications in negotiating the bride price (lobola) in many communities, which implies that a women’s reproductive capacity has a monetary value which has the effect of objectifying women. The majority of the leaders opposing the ban are male (traditional leaders)[30]. It may therefore be argued that, virginity testing is an ancient culture aimed at substantiating male domination and the subordination of women.
The South African Human Rights Commission (SAHRC) takes the position that the cultural practice of virginity testing ‘constitutes a violation of the rights of the child and an unfair discrimination against girl-children (gender discrimination).[31] According to the Commission on Gender Equality, the practice of virginity testing disproportionately affects women as it enhances their vulnerability in society by exposing them to dangers such as rape and other forms of abuse.[32]
The right to dignity:
The right to dignity is infringed because discovering a candidate’s hymen to be disrupted in a virginity testing ceremony leads to stigmatization and mocking by other participants as well as the community. ‘When a girl passes, the women clap and ululate but when someone fails, an accusing silence follows the girl, who is asked to sit in a private corner and wait for an older woman to "counsel" her’.[33] Girls with broken hymens suffer such humiliation even in light of medical evidence that a women’s hymen can break accidentally and occasionally a girl is born without one.[34]
The SAHRC agrees that the practice is undignified and argue that the girl’s dignity is violated due to the fact that ‘some stranger has to [publicly] invade their privacy in order to determine whether they are virgins or not’.[35]
The right to freedom and security of the person:
This right includes the right to security in and control over your body. The Commission on Gender Equality argues that virginity testing without the informed consent of the girl violates this right.[36] The SAHRC finds the argument that virginity testing is done voluntarily unacceptable in light of subtle coercion by families and societies to undergo testing.[37] Even some political leaders encourage it.
A mere refusal to participate in a test for virginity may lead to conclusions of being deflowered and this places pressure on the girls to take part in the test. Given societal pressures to participate and also considering the ages of some of the participants it can be argued this practice is not done with the informed consent of the girls, violating their right to freedom and security of the girls.
This right also includes the right not to be treated in a cruel and inhuman or degrading way. Those performing the examination do so sometimes without gloves and often unhygienically,[38] exposing the girl child to infections and it can be considered to be cruel and inhumane treatment.
The right to privacy:
The manner of virginity testing commonly entails a public inspection of the females vagina and this violates the right to privacy. Those who fail the test are marked and this means that the results of the test are made public. According to the Commission on Gender Equality, disclosing the girl-child’s virginity status to others without their informed consent is an invasion of their privacy. [39]
The right to be protected against maltreatment, abuse, neglect and degradation:
This right is infringed upon in light of the dangers surrounding virginity testing. Being exposed as a virgin is dangerous in light of the belief by some that sex with a virgin can cure Aids, ‘…police believe it is a major contributor to the rising number of child rapes’[40] ‘Virgins have also become a commodity in the trade of child trafficking’[41] There are also reports of participants physically harming themselves so as to fool testers and pass the test.[42] Some girls resort to anal sex in order to pass the test.[43] The Commission on Gender Equality also argues that victims of sexual offences are known to suffer abandonment, rejection and violence on disclosing their identity.[44] Virginity testing is also said to operate so as to identify cases of child abuse, given what is said by the Commission the exposure would harm the child more than actually providing protection.
Further arguments being raised by organizations working with children who have been sexually abused is that the practice goes against all the messages that children are given with regards to saying no to adults touching their private parts. In order to protect children from abusers, children are consistently taught that their body is their own and that no person may touch their private parts, even if the person is an adult person with authority over them. They are taught to shout no and to run away. Virginity testing sends the opposite message and this will bring about confusion for the children and undermine the message of saying no to abuse. Furthermore, no regulations are set in place to ensure that the testers are not child abusers.
Section 36:
Applying section 36 to this practice it is obvious that the rights affected by the practice are fundamental to all human beings. The purpose for the limitation (the rationale behind the practice) is the exercise of a culture, to curb teenage pregnancy and reduce the spread of Aids. Though the two last objectives are important they can be achieved by other less restrictive means such as the current governmental Aids programmes and sex education. This argument is endorsed by the Gender Commission.[45]There is also no certainty that virginity testing in fact does curb the spread of Aids.
The following can be said in response to an argument that the practice should be left intact because it is part of the culture of those who practice it. Section 30 of the Constitution protects individual’s right to participate in cultural practice of their choice but cautions that this should be done in accordance with the Bill of Rights. Section 31(2) says that cultural rights may not be exercised in a manner inconsistent with any provision in the Bill of Rights. This is a sectional limitation on this right to participate in cultural practices. In this regard an argument raised by the South African Law Reform Commission is instructive ‘Given the fact that the best interest of child principle in section 28 of the Constitution is paramount and the individualistic nature of human rights protection, it would seem that the right of an individual child supersedes that of the cultural or religious group’[46] A culture which is harmful is not in the best interest of children. Viewed this way the practice is in direct violation of the Constitution and the values it seeks to uphold.